On October 27, 2026, Justice Reed of the New York County Commercial Division issued a decision in Castle Apparel Ltd. v. Del Vecchio, 2026 NY Slip Op. 51817(U), holding that a party cannot be compelled to produce a non-party witness, explaining:
Defendants seek to compel plaintiffs to produce George Pavey as a party witness. Plaintiffs submit that Mr. Pavey is not their employee and is not a party over which they have control or an ability to produce.
Defendants seek to compel the production of Pavey as a party witness based upon their interpretation of records exchanged by plaintiffs. According to defendants, Pavey is a document custodian for plaintiffs, an advisor who was retained to assess the circumstances surrounding the sale of Brooks Brothers, and an individual engaged by plaintiffs to negotiate plaintiffs’ interests relating to the Brooks Brothers bankruptcy. Based upon Pavey’s purported involvement in decisions defendants deem to be critical, defendants submit that plaintiffs should be required to produce Pavey as a party witness.
Plaintiffs submit that Pavey is merely a third-party consultant, employed by a nonparty entity in Switzerland, and deny that Pavey was ever an employee of plaintiff entities. Plaintiffs deny that they have the authority or control over Pavey necessary to compel his appearance at a deposition.
In New York, it is well settled that a party cannot be compelled to produce a nonparty witness for deposition. The court has rejected requests that seek to direct a party to use best efforts to produce a nonparty witness, and will not order that a party produce a former employee, or, as in this case, an outside consultant, who was never a party employee.
Here, plaintiffs directly refute defendants’ representation regarding Pavey’s employment status and submit that they do not employ or have any ability to compel his appearance at a deposition. Based upon plaintiffs’ representation, the court cannot and will not compel plaintiffs to produce Pavey as a party witness. The Sugarhill decision, relied upon by defendants, does not compel a different result.
In Sugarhill, plaintiff, Sugarhill Record Company, served a notice of deposition upon defendant Motown Record Company that identified a specific corporate defendant Sugarhill sought to depose. The individual was an employee of Motown and purportedly possessed relevant information that was central to the dispute between the record companies. Motown refused to produce the employee, arguing that the employee was neither an officer nor a director of Motown, and submitted that it was not obligated to produce a non-corporate designee in the first instance.
The federal court in Sugarhill permitted the deposition of the designated person to go forward. The Federal Rules of Civil Procedure permits a party seeking discovery to either designate an appropriate individual for examination, or to describe the subject matter of the questions to be asked and allow the corporate deponent to designate its own spokesperson familiar with that subject matter. The court noted that it had clear doubts as to the status of the employee, and, in resolving the matter in favor of Sugarhill, the examining party, held that the Motown employee should be produced to facilitate and expedite discovery.
The court, here, does not agree with defendants’ characterization of Pavey as plaintiffs’ managing agent, and does not find the rationale of the Sugarhill court persuasive in assessing the circumstances at bar. The facts here suggest that Pavey is a nonparty, and not an employee of plaintiffs. The New York Civil Practice Law and Rules provide for disclosure from nonparty entities and directs that discovery from nonparty entities be sought by subpoena. Alternatively, defendants may make a showing sufficient to establish entitlement to an open commission. Under either circumstance, it is defendants who carry the burden of requesting and obtaining discovery from nonparty entities, making defendants’ request for an order compelling plaintiffs to produce a nonparty witness improper.
(Internal quotations and citations omitted).